Wednesday, May 5, 2010

This Friday I am participating in a debate on twitter regarding virtual law practices with Stephanie Kimbro, who operates a web-based virtual law office (VLO) powered by VLOTech (Virtual Law Office Technology, LLC), a company that she co-founded in 2007. Stephanie practices online from her home office or as she says "wherever I feel like working remotely that day."

In advance of this debate, Stephanie has written a blog post about the future of the legal profession.

In an effort to begin the debate here, Stephanie is completely wrong.

It's OK, Stephanie is not one of the hysterical people on social media who whines and cries tears anytime someone says something that doesn't comport with her opinion. Stephanie understands that the ability to bolster her opinion, which is completely wrong, is served by those who disagree.

That's why I agreed to this debate.

In her blog post, Stephanie makes her case, or tries at least.

She begins by saying the future of law practice is client-centric. No, it's always been client-centric to lawyers that believe their role is to serve the client. But Stephanie is specific about her title. By client-centric she means increased customer service, response time, alternative billing, online access and use of technology by the firm to cut costs and make legal services more easily obtainable and affordable.

No one can argue that in this economy, increased customer service and response time is essential in any business. Lawyers are not immune from economic downturns, and when times are tough, clients look to those lawyers who are doing everything they can to satisfy the client.

Alternative billing? This always makes me chuckle. Criminal defense lawyers have used alternative billing forever. It's called the flat fee. With the death of BigLaw and their overbilling of hours, they now call that a "value fee." This is nothing new, it's just what BigLaw never did, so we call it "alternative," as if anything BigLaw doesn't do is "alternative."

Technology? All for it. Any lawyer who doesn't have a blackberry, iPhone, or other PDA, is a moron. I'm all about scanning documents, and emailing things to clients. Client files accessible online? Sorry, not for me. Not for my criminal or Bar clients. Can't do it. A client wants a document, I'll email it to them, that's as far as I will go. My job is to protect the client and the client's right to confidentiality. Don't tell me allowing them access to their file on-line has no danger at this point in time.

But then Stephanie goes off the deep end. She envisions the end of virtual law offices:
Imagine telling the client who has enjoyed online access to the status and files of his case that he must now make in-person appointments in your office and will receive the invoice in the mail in 7-10 business days. Or imagine telling your clients who you provided flat fees for legal services that you will now be charging them by the billable hour rate and instead of a number they can budget, giving them a guestimated range they will owe you upon services rendered.

In person appointments? Invoices in the mail in 7-10 days? No more flat fees?

Huh?

The virtual law office issue is about lawyers not having a physical office, it is not about clients not being able to be emailed files or invoices, or talk to their lawyer on the phone, or Skype. State Bars (some, state Bars) want lawyers to have a physical location. That is not to the exclusion of technology based practices. Sure, there is an issue of files being kept on-line, but why should we as lawyers determine how the client's file will be maintained? The client isn't entitled to a physical file of documents because some of us want to keep them on our iPads while sitting in Starbucks?

Stephanie, wrongly, believes that through the use of technology and especially through the security of virtual law practice we have much more effective communication with our clients, and wants to know why we as attorneys want to give that up?

Give what up? Rules on virtual law offices are again, not to the exclusion of technology. The sky is not falling. The "clouds" are still there. More effective communication with clients is by email and phone, not in person? Says who? These are clients hiring lawyers. Is a face to face meeting such a terrible thing?

In the end, Stephanie's point really appears to be that a virtual law office makes things easier and cheaper:

But the benefit should be that the use of technology gives us the ability to better serve our clients and the time to focus on actually solving problems for individuals rather than getting bogged down in administrative tasks that we later have to find ways to cover in our legal fees.

Stephanie relates the prohibition of virtual law practices as creating "less customer service." I don't see it. I don't buy it. I think that advocates for virtual law offices just want to do what they want, claim it benefits the clients, when in reality it's really for the convenience of the lawyer. The lawyer doesn't have to pay rent, doesn't have to provide a place to meet with the client, and can work out of their trunk. While some clients appreciate this in terms of fees, if the virtual crowd wants state Bars to come into their 21st century of law practice, they need to stop whining and get on a Bar committee and open their mouth.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of I Got A Bar Complaint.

15 comments:

I haven't read Stephanie's post yet, but I generally agree with you. I am a latecomer to technology so I don't know how never meeting your client is a good thing. We never gave out fees on the phone, much less on the internet so I don't know what good that does. I do know that despite my lack of technological advancement (although I do have an iphone and a scanner) I feel like I've given clients value over the past ten years.

There are times that I really do feel like Rip Van Winkle. Have things changed that much in three years?

It's fine, within limits, for civil clients to make demands on how the lawyer should run his practice. Many civil legal matters are pretty much a commodity service, so there's nothing wrong with lawyers being innovative.

Criminal clients have other things to worry about, and should probably just shut up and do what you tell them to do.

Nice post. I have a number of former criminal defense colleagues from NYC who practice virtually because the majority of their clients are incarcerated and their "conference room" is on Riker's Island. I definitely do not agree with running a practice like that. Need to have a physical location no matter what. No matter what. No matter what.

Hi Brian. I was not intending to start our upcoming debate with my recent blog post. I wrote the post the day after returning from the LPM Spring Conference and was reiterating the messages I heard from others in one of the CLE sessions there. I look forward to chatting with you on Twitter Friday.

Just to add to my earlier post - I do think it's okay for those starting out to use those "executive office" setups where you buy a package of office time per month with the option to upgrade to a full time office when the clients and the money start rolling in. You may disagree, but for those willing to go it alone with few or no clients at the beginning, signing a multi-year office lease can be a little scary.

Why do you think that proponents of virtual law practices aren't on bar committees? I know that Stephanie (for example) has been very active in the North Carolina Bar Association on issues relevant to virtual law practice.

You argue that virtual law practice benefits only the lawyer, not the client. But isn't increasing access to legal services always a benefit to those clients who would not hire a lawyer at all absent the ability to (1) work with a lawyer virtually; and/or (2) afford to hire a lawyer?

Allowing virtual law practices doesn't mean that clients who want meet face-to-face with their lawyers won't be able to do so: it means that clients who don't want to do that won't have to. And it doesn't mean that lawyers who maintain virtual law practices never talk to their clients on the phone.

You ask: "The client isn't entitled to a physical file of documents because some of us want to keep them on our iPads while sitting in Starbucks?" I know plenty of lawyers who maintain physical offices, but yet are working towards a "paperless" office in which all documents (other then those for which originals must be maintained) are maintained in electronic form. So are you against the "paperless" office, too? How about this: when a client wants a hard copy of his file, his lawyer can simply print out copies of the documents in the file. Why is it necessary to have an office to do that? (A lawyer who does not maintain an office outside the home can keep necessary originals in locked file cabinets at home, where they are no less secure than locked file cabinets in a shared office suite.)

Here's a hypothetical: hard-working single mom is a nurse working the graveyard shift. During normal business hours, she's sleeping or spending time with her kids. It's hard for her to take time off work (she really needs the money and nobody wants to take a graveyard shift). She wants to protect her kids by doing some estate planning. Is it better for her to be able to communicate with a lawyer securely through a virtual portal than to use a will form from LegalZoom?

What harm does a virtual law practice hold for clients that is particular to such a practice?

In a related vein, what's so bad about finding a way to practice that's more convenient for lawyers, if the client isn't harmed?

Thanks for your comment/questions. I continue to wonder why the virtual/social media/lawyer crowd thinks the best way to advocate their position, which is "let us do what we want," is to ignore the details of the argument, and just whine about the fact that someone disagrees with them. I'm not accusing you of that, but the questions you ask are relevant to explaining my position.

First, you ask why I think that proponents of virtual law practices aren't on bar committees? You tell me Stephanie has been very active in the North Carolina Bar Association on issues relevant to virtual law practice.

I know that. I'm still waiting for another name, from anyone.

Anyone?

There's all these virtual lawyers, and Stephanie is the only one who's involved in her state Bar? That tells me a lot. Complaining from Starbucks doesn't do any good virtual lawyer crowd.

No one in this debate wants to recognize the truth. I'm not against virtual offices. I'm not also against state Bars that wish to regulate how law is practiced. if a surgeon found a way to do surgery in his garage, should we let him do that? Or should we allow his state's board of medicine determine the standards. The problem is clear: whiny lawyers demanding that their state Bar recognize their desire to work in flip flops at Starbucks with laptops.

I don't understand your notion that there are clients who would not hire a lawyer at all absent the ability to work with a lawyer virtually. Most lawyers today have email, and fax. Virtual to me is anything that is not in person and involves electronics. To say that there are clients demanding they be able to hire a lawyer in Montana to handle their issue in Texas ignores the state's right to regulate the practice of law.

Clients who don't want to meet with their lawyer, don't have to. I am hired by clients in other states and countries that I never see. They have a case in Florida, and I can handle it without them being here. Virtual lawyers want to not have to have an office or provide an address. That's fine - change the Bar rules. Stop whining while setting up shop among the vente lattes.

Your hypothetical? A hard-working single mom is a nurse working the graveyard shift and wants to do estate planning? Great. She can provide an address and work from home. Not a problem. The Bar wants to know where lawyers are during the day when they are working. Is that such a terrible thing? Is it so terrible that we have a profession in which there are standards? Should we just go around to Starbucks and have those lawyers set the rules?

You ask "what's so bad about finding a way to practice that's more convenient for lawyers, if the client isn't harmed?"

Nothing. But again, if you want the Bar to accomodate your desire to practice on your terms, then advocate for that change.

I am a huge opponent of overregulation by state Bars, but change comes with advocacy, not sipping coffee and blogging or twittering.

Some lawyers own their office spaces. Some rent by the year or the month. Some rent by the minute, and others work exclusively from home. In each case, the lawyer makes an economic decision based on the need's of the clients and the lawyer's ability to pay additional rent.

What is wrong with the current state of things. If a state bar choose to mandate offices (like Jersey seems to) why wouldn't that be over reaching?

First, the fact that I can name only one person who is active in bar associations concerning virtual law practice issues doesn't mean there aren't others. Furthermore, while participation on bar committees is important, there are many reasons why an advocate for any issue (virtual practice or otherwise) may not want to get involved in a committee. For example, bar committees may be overly "political" (not in the Democratic/Republican sense).

As you know, I'm involved in an area of practice (outsourcing) that many lawyers have strong feelings about, pro or con. Yet, I'm not interested in participating on bar committees. I make my views known through my blog and through other participation in the system (for example, I am submitting a comment today in response to the ABA 20/20 Commission's call for comments about legal process outsourcing). To me, whiners are people who complain anonymously, not people who put their name and reputation behind their views.

Second, I think you misconstrued my hypothetical. The hard-working single mom is the client, not the lawyer.

Third, you commented: "The Bar wants to know where lawyers are during the day when they are working. Is that such a terrible thing?" Does that mean we all have to check in with Big Brother? In New York (and, I assume, in all other states), when you register with the Bar, you must provide both a home and office address. The home address is not made public, but the Bar can find you even if your office address is a virtual office.

Your comment that "[t]o say that there are clients demanding they be able to hire a lawyer in Montana to handle their issue in Texas ignores the state's right to regulate the practice of law." is a red herring. Proponents of virtual law practice do not argue that a lawyer should be allowed to practice in a jurisdiction in which he or she is not admitted. Are you suggesting that a lawyer who is admitted to practice in State A, and working on a matter involving the law of State A, while the lawyer is physically located in State B is committing UPL? If so, then no lawyer better do any work while on vacation - whether or not the lawyer has a traditional office.

Finally, if a surgeon can do surgery in his garage in accordance with health and safety regulations, then yes, he should be allowed to do surgery in his garage. My daughter's orthodontist has his office in his home (The office has a separate entrance). As long as the orthodontist maintains the same level of professional conduct in his home office as he would in an office building, and as long as his panoramic x-ray machine passes state inspection, I don't care that I'm sitting in his basement.

As a member of Bar committees for 10 years, I reject that there is a good reason why advocates of virtual practices may want to stay away. It's simple, if you don't get involved, don't complain. That's one of my biggest beefs, is that these virtual lawyers want Bars to fall in line on their demands to be unregulated, or less regulated, but will only complain on twitter, or some other online venue. It's about getting in the arena, and being heard.

Does the Bar wanting to know where you are "mean we all have to check in with Big Brother?" No, it means they need an address, period. A real address.

Am I suggesting that a lawyer "who is admitted to practice in State A, and working on a matter involving the law of State A, while the lawyer is physically located in State B is committing UPL?" Not only am I not suggesting that, it's impossible to even think that. Plenty of Florida lawyers are domiciled elsewhere, just look at the Bar Journal. But if they have an active practice here, they have an address here where they can be found.

Your daughter's orthodontist has his office in his home? Great. I've said about 30 times that home offices are not an issue. This is now about 31.

You have an interesting position, Brian. I'd like to suggest that the issue isn't really zero-sum, though. We use technology to serve our clients in ways that works for both us and our clients. For example, although I use extensive online collaboration for drafting documents, I prefer meeting my clients in person before I represent them. I've been struggling with ways to decrease overhead associated with office space while still being able to maintain that first meeting. Since a lot of my work is litigation, I won't have a virtual practice per se, but I would really like to explore other ways of doing things, especially when it works for my clients, as well as for me.

Very interesting discussion and I've enjoyed reading the comments and I agree and disagree with both of you.

First off, the main point by Brian with which I disagree is when he states that emailing documents is more secure than providing clients a secure portal for documents. And I think he misses the point when generalizing and saying that a client could have anytime access to all documents. Lawyers should only use a web document management or client portals that have security options to allow the lawyer to decide what rights to give the client acessing the document. This is substantially more secure than email which already isn't allowed as a document transfer tool for investment advisors and accountants and should not be used by lawyers sending confidential documents.

I do agree with some of Brian's points against Steph but have not read her blog post so I will reserve my comments for her blog.

Let's cut to the chase. This debate is not about client service or access of the client to the lawyer. With today's 24 X 7 on-call contact with clients via e-mail and Blackberry, the client has full and constant access to the lawyer and to the client's documents, regardless of where he or she physically practices. Most lawyers rarely see clients in their physical offices anyway in today's practice world.

No; what this debate is about is competition between lawyers. Those with physical offices obviously have a vested interest in avoiding the competition of lawyers who enjoy the much lower overhead of "virtual office" arrangements, and who therefore can offer clients reduced rates. Let's call it like it is, and be honest about the underlying interests that are driving this debate.